141 F.

3d 1185
98 CJ C.A.R. 1637
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Jason MURRAY, By and through his next friend, LaVon

Bohannon, Plaintiff-Appellant,
v.
Kenneth S. APFEL, Commissioner, Social Security
Administration, Defendant-Appellee.
No. 97-5043.

United States Court of Appeals, Tenth Circuit.

April 7, 1998.

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

1ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without
oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Claimant, Jason Murray, brought this action by and through his mother, LaVon
Bohannon. He appeals the district court's affirmance of the Commissioner's
denial of his application for supplemental security income benefits. The claim
was denied initially and upon reconsideration. Claimant requested a hearing,
and the Administrative Law Judge (ALJ) also denied benefits. The Appeals
Council denied review, and the ALJ's denial of benefits became the
Commissioner's final decision. Claimant brought an action in the United States
District Court for the Northern District of Oklahoma, and the parties consented

to having a magistrate judge conduct the proceedings and enter judgment in the
case. We affirm.
4

We review the district court's order de novo. See Brown v. Callahan, 120 F.3d
1133, 1135 (10th Cir.1997). To that end, we must independently determine
whether the Commissioner's decision is both supported by substantial evidence
in the record and free of legal error. See id. Substantial evidence is "such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971) (quotation omitted).

The ALJ evaluated the benefits claim pursuant to a four-step process in effect
at that time. See 42 U.S.C. 1382(a)(3)(A) (1994), as implemented by 20
C.F.R. 416.924 (1994).1 After the ALJ issued his decision, Congress changed
the evaluation process for children's disability claims and, because claimant's
request for judicial review was still pending, we apply the new law. See
Brown, 120 F.3d at 1135; notes following 42 U.S.C. 1382c.

The revised statute eliminates the fourth step of the prior analysis. Accordingly,
the new regulation provides that if the child's impairment or impairments do
not meet or equal a listing at the third step of the evaluation, the child is not
disabled. See 20 C.F.R. 416.924(d)(2) (1997). Consequently, we will not
review the ALJ's findings or decision at step four of the evaluation, and the
sole issue in this appeal is whether the ALJ's finding that claimant did not meet
or equal a listing is supported by substantial evidence. See Brown, 120 F.3d at
1135.

Claimant was born on May 10, 1985. He filed his application for benefits on
September 15, 1992. Claimant has been diagnosed with attention deficit
hyperactivity disorder (ADHD) and, at the time of the hearing, was taking 20
mg. of Ritalin three times a day. It is because of this affliction that he claims
disability. The relevant listing identifies ADHD as "manifested by
developmentally inappropriate degrees of inattention, impulsiveness, and
hyperactivity." 20 C.F.R. pt. 404, subpt. P, app. 1, 112.11 To meet or equal
112.11, claimant must satisfy both parts A and B. Part A requires medically
documented findings of marked inattention, marked impulsiveness, and marked
hyperactivity. See id. Part B requires that two of the criteria in 112.02B2 be
met:

8 Marked impairment in age-appropriate cognitive/communicative function,

a.
documented by medical findings (including consideration of historical and other
information from parents or other individuals who have knowledge of the child,

when such information is needed and available) and including, if necessary, the
results of appropriate standardized psych[o]logical tests, or for children under age 6,
by appropriate tests of language and communication; or
9 Marked impairment in age-appropriate social functioning, documented by history
b.
and medical findings (including consideration of information from parents or other
individuals who have knowledge of the child, when such information is needed and
available) and including, if necessary, the results of appropriate standardized tests;
or
10Marked impairment in age-appropriate personal functioning, documented by
c.
history and medical findings (including consideration of information from parents or
other individuals who have knowledge of the child, when such information is
needed and available) and including, if necessary, appropriate standardized tests; or
11Deficiencies of concentration, persistence, or pace resulting in frequent failure to
d.
complete tasks in a timely manner.
12

The ALJ made no specific finding regarding whether claimant satisfied part A
of the listing, although there is evidence to support that claimant exhibited
marked inattention, impulsiveness, and hyperactivity. Nevertheless, even if we
assume that, based on the medical expert, Dr. Kisher's, testimony, the ALJ
found that claimant met the first part of the listing, the ALJ clearly detailed his
findings relevant to the part B requirements and his conclusion that claimant
exhibited no marked limitations in any of those areas. Relevant to part B,
however, the ALJ referred to the IFA completed by Dr. Kisher and specifically
found that claimant had no limitation of communicative development; less than
moderate limitation in cognitive development; moderate limitation of social
development; moderate limitation of personal/behavioral development; and less
than moderate limitation of concentration, persistence, and pace. Because
claimant did not have marked limitations in even one of these areas, his
impairment was not of the required level of severity to meet or equal the listing.
Substantial evidence in the record, including the medical expert's testimony,
supports these findings.

13

The district court accurately and thoroughly summarized the record evidence,
and we will not repeat those details here. Suffice it to say, the record evidence
bears out the medical expert's insistent conclusion2 that claimant has no more
than moderate limitations in any of the areas referenced in part B of 112.11.
The record shows that claimant's mother thought of claimant as an active child
and noted that he completed regular household chores, played with and helped
his younger sister, and even when he burned his sister once, it was not
maliciously.

14

The medical evidence support's claimant's diagnosis of ADHD, but it also

shows improvement in his behavioral problems with proper medication. The
testing and medical opinions also indicate average to above-average
intelligence and performance. Similarly, claimant's teachers and other school
evaluators noted instances of specific behavioral problems only when claimant
did not take his medication. The record shows significant improvement in
claimant's school behavior over time, average or above-average academic
achievement, and behavior appropriate for school and in line with age
expectations. Claimant was eventually main streamed for reading, art, music,
P.E., recess, and lunch.

15

The record contains substantial evidence supporting the ALJ's conclusion that
claimant's limitations in the areas referenced in part B of 112.11 are not
marked. The ALJ's decision at step three that claimant's impairment did not
meet or equal the listings is supported by substantial evidence, and claimant
was, therefore, not disabled.

16

AFFIRMED.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

First, the ALJ determined that claimant was not engaged in substantial gainful
activity. Because he was not, the ALJ went on to the second step and
determined that claimant did have a severe impairment. At step three, the ALJ
decided that claimant's impairment did not meet or equal an impairment listed
in 20 C.F.R. pt. 404, subpt. P, app. 1 (listings). Finally, the ALJ considered the
individualized functional assessment (IFA) prepared by the medical expert and
concluded that claimant's impairment was of comparable severity to that which
would prevent an adult from engaging in substantial gainful activity. See App.
at 26

We note the apparent facial inconsistencies in the medical expert's testimony,

but it is clear from reading his testimony as a whole that he was of the
indisputable opinion that claimant suffered from no more than moderate
limitations in any of the IFA areas, which mirror the part B listing areas